June 7, 2002
Digest: A judge must disqualify himself or herself where an attorney who represents the judge’s child appears before the judge. Such disqualification is subject to remittal pursuant to 22 NYCRR 100.3(F).
Rule: 22 NYCRR 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 92-60 (Vol. IX); 97-15 (Vol. XV); 99-47(Vol. XVII).
A judge asks whether it is permissible for the judge’s child to retain an attorney who is the part-time assistant district attorney assigned to the judges court.
A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary [22 NYCRR 100.2(A)], and must not allow family relationships to influence his or her judicial conduct or judgment. 22 NYCRR 100.2(B). In addition, a judge must disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In earlier opinions, this Committee has advised that a judge should disqualify himself or herself in a proceeding involving an attorney or law firm that also is representing a member of the judge’s family in another matter or court. Opinions 92-60 (Vol. IX); 97-15 (Vol. XV); 99-47(Vol. XVII). Such disqualification is subject to remittal. 22 NYCRR 100.3(F).
Thus, with respect to the present inquiry, if the judge’s child retains the assistant district attorney assigned to the judge’s court, the judge must disqualify himself or herself whenever that attorney appears before the judge. If the judge feels that he or she can be impartial, the judge may disclose the attorney/client relationship and continue to preside, provided that all parties consent in accordance with the procedures set forth in 22 NYCRR 100.3(F). Nevertheless, if the attorney/client relationship would result in frequent recusals, it might be preferable for the judge’s child to retain different counsel.